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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-05-TC-040
In the Matter of )
NAL/Acct. No. 200832170009
SMC, LLC )
FRN: 0017313230
)
)
FORFEITURE ORDER
Adopted: September 16, 2010 Released: September 28, 2010
By the Commission:
I. introduction
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $806,500 against SMC, LLC ("SMC") for willful and
repeated violations of section 227 of the Communications Act of 1934,
as amended ("Act") and the Commission's related rules and orders, by
delivering at least 145 unsolicited advertisements to the telephone
facsimile machines of at least 84 consumers.
II. background
2. This Forfeiture Order arises from two distinct Notices of Apparent
Liability that the Commission issued against SMC. The facts and
circumstances surrounding these cases are set forth in the
Commission's Notices of Apparent Liability for Forfeiture and need not
be reiterated at length.
3. Section 227(b)(1)(C) of the Act makes it "unlawful for any person
within the United States, or any person outside the United States if
the recipient is within the United States . . . to use any telephone
facsimile machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement." The term
"unsolicited advertisement" is defined in the Act and the Commission's
rules as "any material advertising the commercial availability or
quality of any property, goods, or services which is transmitted to
any person without that person's prior express invitation or
permission in writing or otherwise." There is, however, an exception
to the Commission's rule that permits a party to deliver unsolicited
advertisements to persons with whom it has an established business
relationship if certain conditions are met (i.e., the sender obtained
the number of the facsimile machine either (i) through a voluntary
communication by the recipient directly to the sender within the
context of the established business relationship, or (ii) through a
directory, advertisement, or site on the Internet to which the
recipient voluntarily agreed to make available its facsimile number
for public distribution).
4. On October 12, 2005, in response to one or more consumer complaints
alleging that SMC had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to SMC, pursuant to
section 503(b)(5) of the Act. The Bureau cited SMC for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for medical services offered by another
entity, in violation of section 227 of the Act and the Commission's
related rules and orders. The citation warned SMC that subsequent
violations could result in the imposition of monetary forfeitures of
up to $11,000 per violation, and included a copy of the consumer
complaints that formed the basis of the citation. The citation
informed SMC that within thirty (30) days of the date of the citation,
it could either request an interview with Commission staff, or provide
a written statement responding to the citation. SMC did not request an
interview or otherwise respond to the citation.
5. Following the issuance of the citation, the Commission received at
least 84 complaints from consumers alleging that SMC faxed at least
145 unsolicited advertisements to them. These violations, which
occurred after the Bureau's citation, resulted in the issuance of two
Notices of Apparent Liability for Forfeiture against SMC: one on
February 29, 2008, in the amount of $458,500, and one on July 24,
2008, in the amount of $348,000. The NALs ordered SMC to either pay
the proposed forfeiture amount within thirty (30) days or submit
evidence or arguments in response to the NAL to show that no
forfeiture should be imposed or that some lesser amount should be
assessed. SMC did not respond to the NALs or pay the proposed
forfeiture amounts.
III. discussion
6. Section 503(b) of the Act authorizes the Commission to assess a
forfeiture for each violation of the Act or of any rule, regulation,
or order issued by the Commission under the Act by a non-common
carrier or other entity not specifically designated in section 503 of
the Act. The maximum penalty for such a violation is $11,000 for a
violation occurring before September 2, 2008, and $16,000 for a
violation occurring on or after September 2, 2008. In exercising such
authority, we are to take into account "the nature, circumstances,
extent, and gravity of the violation and, with respect to the
violator, the degree of culpability, any history of prior offenses,
ability to pay, and such other matters as justice may require."
7. Although the Commission's Forfeiture Policy Statement does not
establish a base forfeiture amount for violating the prohibition
against using a telephone facsimile machine to send unsolicited
advertisements, the Commission has previously considered $4,500 per
unsolicited fax advertisement to be an appropriate base amount. In the
NALs, we applied that base amount to each of 117 of the apparent
violations. In addition, where the consumer requests the company to
stop sending facsimile messages, and the company continues to send
them, the Commission has previously considered $10,000 per unsolicited
fax advertisement as the appropriate forfeiture for such egregious
violations. Here, 18 consumers specifically requested that SMC cease
sending facsimiles. Notwithstanding these requests, an additional 28
facsimiles were sent to these consumers. Thus, we apply the $10,000
amount to each of 28 of the apparent violations.
8. SMC did not respond to the NALs or pay the proposed forfeiture
amounts. SMC has failed to identify facts or circumstances to persuade
us that there is a basis for modifying the proposed forfeitures and we
are not aware of any mitigating circumstances that would warrant a
reduction of the forfeiture penalties. For these reasons, and based on
the information before us, we hereby impose a total forfeiture of
$806,500 for SMC's willful or repeated violation of section 227 of the
Act and the Commission's related rules and orders, as set forth in the
NALs.
IV. ordering clauses
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b), and
section 1.80(f)(4) of the Commission's rules, 47 C.F.R. S: 1.80(f)(4),
that SMC, LLC IS LIABLE FOR A MONETARY FORFEITURE to the United States
Government in the sum of $806,500 for willfully and repeatedly
violating section 227(b)(1)(c) of the Communications Act, 47 U.S.C. S:
227(b)(1)(c), section 64.1200(a)(3) of the Commission's rules, 47
C.F.R. S: 64.1200(a)(3), and the related orders as described in the
paragraphs above.
10. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Commission's rules within thirty (30) days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to section 504(a) of the Act. Payment of the
forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the NAL/Account Number and FRN Number referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). SMC, LLC will also send
electronic notification on the date said payment is made to
Johnny.Drake@fcc.gov. Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
11. IT IS FURTHER ORDERED that a copy of the Forfeiture Order shall be
sent by First Class mail and certified mail return receipt requested
to SMC, LLC, Attention: Greg Horne, 6404 Village Drive, Plano, TX
75024, 13612 Midway Road, #405, Farmers Branch, TX 75244, 6009 W.
Parker Road, Suite 149-114, Plano, TX 75093, and 16901 Dallas Parkway,
Addison, TX 75001.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 U.S.C. S: 227.
See also 47 U.S.C. S: 503(b)(1). The Commission has the authority under
this section of the Act to assess a forfeiture against any person who has
"willfully or repeatedly failed to comply with any of the provisions of
this Act or of any rule, regulation, or order issued by the Commission
under this Act ...."; see also 47 U.S.C. S: 503(b)(5) (stating that the
Commission has the authority under this section of the Act to assess a
forfeiture penalty against any person who does not hold a license, permit,
certificate or other authorization issued by the Commission or an
applicant for any of those listed instrumentalities so long as such person
(A) is first issued a citation of the violation charged; (B) is given a
reasonable opportunity for a personal interview with an official of the
Commission, at the field office of the Commission nearest to the person's
place of residence; and (C) subsequently engages in conduct of the type
described in the citation).
SMC, LLC, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 3497
(2008); SMC, LLC, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
11681 (2008) (collectively "NALs").
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).
An "established business relationship" is defined as a prior or existing
relationship formed by a voluntary two-way communication "with or without
an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the business or residential subscriber
regarding products or services offered by such person or entity, which
relationship has not been previously terminated by either party." See 47
U.S.C. S: 227(a)(2); see also 47 C.F.R. S: 64.1200(f)(5).
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-05-TC-040 issued to
SMC on October 12, 2005.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to persons who do not hold a license, permit, certificate or other
authorization issued by the Commission or an applicant for any of those
listed instrumentalities for violations of the Act or of the Commission's
rules and orders).
Bureau staff mailed the citation to the following address: 13612 Midway
Road, Suite 405, Dallas, TX 75244-3410.
See n.3, supra; see also 47 U.S.C. S: 503(b)(1).
Section 503(b)(2)(C) provides for forfeitures of up to $10,000 for each
violation in cases not covered by subparagraph (A) or (B), which address
forfeitures for violations by licensees and common carriers, among others.
See 47 U.S.C. S: 503(b). In accordance with the inflation adjustment
requirements contained in the Debt Collection Improvement Act of 1996,
Pub. L. 104-134, Sec. 31001, 110 Stat. 1321, the Commission implemented an
increase of the maximum statutory forfeiture under section 503(b)(2)(C)
first to $11,000 and more recently to $16,000. See 47 C.F.R. S:1.80(b)(3);
Amendment of Section 1.80 of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221 (2000)(forfeiture
maximum for this type of violator set at $11,000); Amendment of Section
1.80(b) of the Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation, 19 FCC Rcd 10945 (2004) (amendment of section 1.80(b)
to reflect inflation left the forfeiture maximum for this type of violator
at $11,000); Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd 9845
(2008) (amendment of section 1.80(b) to reflect inflation increased the
forfeiture maximum for this type of violator to $16,000).
See 47 U.S.C. S: 503(b)(2)(D); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17100-01 para.
27 (1997) (Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303
(1999).
See Get-Aways, Inc., Notice of Apparent Liability For Forfeiture, 15 FCC
Rcd 1805 (1999); Get-Aways, Inc., Forfeiture Order, 15 FCC Rcd 4843
(2000); see also US Notary, Inc., Notice of Apparent Liability for
Forfeiture, 15 Rcd 16999 (2000); US Notary, Inc., Forfeiture Order, 16 FCC
Rcd 18398 (2001); Tri-Star Marketing, Inc., Notice of Apparent Liability
For Forfeiture, 15 FCC Rcd 11295 (2000); Tri-Star Marketing, Inc.,
Forfeiture Order, 15 FCC Rcd 23198 (2000).
See Carolina Liquidators, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC 16837, 16842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 24406, 24411 (2000).
47 U.S.C. S: 504(a).
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Federal Communications Commission FCC 10-164
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Federal Communications Commission FCC 10-164